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Caroline Corbin has a third post at Concurring Opinions arguing against the ministerial exception to anti-discrimination laws. The post makes a couple of claims. One is that many discrimination suits do not raise religious questions:

For example, imagine a church fires a teacher who has an extramarital affair, arguing that she violated the church’s proscription against sex outside marriage. In a sex discrimination case, the issue of whether sex discrimination has occurred depends on whether the school applies the religious policy equally to male and female teachers. The court will not have to resolve any doctrinal dispute or otherwise evaluate the religious merit of the proffered reason: no one questions the school’s religious belief that sex outside of marriage is forbidden.

I still think this doesn't acknowledge the real-world problem of plaintiffs arguing "pretext." The facts above are simple and clean, but most real cases are more complicated. Either the church's proferred reason for dismissing the plaintiff is more nuanced--an asserted judgment call about his or her suitability or performance--or the church tries to distinguish other instances (say, the male ministers who weren't dismissed) on some ground. Even in the case of the extramarital affairs, for example, if the church says that other ministers were sufficiently repentant while the plaintiff was not, the court now faces religious questions: is there a difference concerning repentance in the two situations; did the church have a reason for starting to emphasize repentance more than in the past; etc.

There are hypotheticals--and some cases--that don't raise religious questions. But one ground for the ministerial exception is that most real-world cases will involve some such question. To some extent it's a prophylactic rule, I suppose, but that doesn't make it unjustified.

Second, Prof. Corbin's premise is that "no religious determinations by courts" is the only ground for the ministerial exception. And in her argument, "no religious determinations" operates as a freestanding, disembodied principle. I think that's wrong. The rule against religious determinations, while correct, is part of a broader notion of church-state separation as autonomy of religious life from government involvement. If the rule is not embedded in such a broader vision, I don't see why we should care about it. Overriding religious organizations' decisions on clergy is, at least presumptively, a violation of that broader vision of separation/autonomy.

Focusing only on "no religious determinations," and treating it as a stand-alone rule, leads Prof. Corbin to conclude that it's the ministerial exception, not the involvement of government in a clergy dispute, that violates the Establishment Clause--because to apply the exception, the court has to make a religious judgment about who is a "minister." Of course, the same is true any time the court has to define what's "religious" and therefore falls under the Free Exercise or Establishment clauses. To me, this shows that the "no religious determinations" principle can't stand alone; taken by itself, it makes the Religion Clauses themselves unconstitutional. The "no religious determinations" rule works together with other principles against government involvement in religious life--like the principle that government should not decide who will serve as clergy. It does not work by itself and in conflict with those other rules.

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The existence of non-justicable cases doesn't justify excluding perfectly secular cases from review under a poorly designed exception. We can exclude religious determinations and protect religious freedom while still recognizing that a portion of the ministerial relationship is secular and within the state's appropriate realm of competency.

Also, a question: would supporters of the ministerial exception also prevent a church from bringing a breach-of-contract claim against a minister who failed to perform his duties?

Andrew, if I thought that "exclude religious determinations" was the only ground supporting the ministerial exception, I'd be inclined to agree with you. But as my post says, I think there's an additional ground of support: the church's interest in choosing leaders (crucial to its religious life) in whom it has confidence, free of government interference even for what a court considers a "secular" reason. As for breach of contract suits (however unlikely it would be for church to sue a clergy member): I would tend to treat those differently from antidiscrimination suits going both ways (minister suing church for breach as well). I think the party waives its interest when it signs a contract; so the remaining question would be whether the terms of the contract incorporate religious questions, which a court shouldn't resolve. Thus the minister could sue the church for breaking a contract to pay a certain salary, but not e.g. for breaking a contract to offer tjhe minister a "suitable" position (see the Minker case from the D.C. Circuit ca. 1989). Likewise, as Joe says, "failure to perform duties" sounds broad enough to incorporate religious questions. The church's remedy there is to dismiss the minister--and raise the ministerial exception when s/he sues.

Posted by: Tom Berg | Apr 15, 2011 8:19:57 PM

Joe, fair enough. But we could forbid consideration of religious issues without preventing all review of breach of contract claims.

Tom, it sounds like you're making an argument for an absolute religious exemption from generally applicable employment laws for religious organizations. It's an argument that's rarely made, but often implied, so I appreciate the explicit statement.

My problems with it are these:

* There doesn't seem to be a foundation for such a right in the text of the constitution. The religion clauses don't protect certain types of institutions or jobs, but rather belief and it's exercise. If a decision is not religiously based, I don't see how it would be protected.

* It's hard to justify why this rule would protect churches but not religious individuals in all of their private employment decisions. Why is a church justified in using a criterium that an individual can't use in hiring someone to work for them?

* Such a rule would be both broader and differently focused than other religious exemption frameworks. Generally, religious exemptions are given for certain actions where a religious belief directly impacts that action, not to individuals or organizations because they are generally religious in nature.

As to contract, why can courts interfere in employment issues if they arise in a contract (like a wage agreement - or say an agreement to spend a certain number of hours meeting with parishioners) but not if those conditions are imposed on contracts by the law? Further, do you think that a court could legitimately arbitrate a claim of sex-discrimination if it arises from a contractual promise rather than from an anti-discrimination law?